208 F.3d 357 (2nd Cir.

2000)

SHERMAN WALKER, Petitioner-Appellant,

v.
CHRISTOPHER ARTUZ, Superintendent, RespondentAppellee.
Docket No. 98-2572
August Term, 1999

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT
Argued September 15, 1999
Decided: March 27, 2000

Appeal from judgment of the United States District Court for the Eastern
District of New York (Johnson, Judge) dismissing petitioner's second
application for a writ of habeas corpus as untimely pursuant to the
Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C.
2244(d). Because we hold that the statute of limitations was tolled during
the time petitioner's first petition for a writ of habeas corpus was pending,
we reverse the dismissal and reinstate the second petition.
Reversed.
GEORGE W. GALGANO, JR., (Deborah Wolikow Loewenberg, on the
brief) New City, NY, for Petitioner-Appellant.
MARY LYNN NICOLAS, Assistant Attorney General, (Eliot Spitzer,
Attorney General, Preeta D. Bansal, Solicitor General, Michael S.
Belohlavek, Assistant Attorney General, on the brief) New York, NY, for
Respondent-Appellee.
Before: WALKER, LEVAL, and POOLER, Circuit Judges.
POOLER, Circuit Judge:

Sherman Walker appeals from the May 18, 1998, judgment of the United States
District Court for the Eastern District of New York (Sterling Johnson, Jr.,

Judge) dismissing his petition for a writ of habeas corpus.

BACKGROUND
2

A jury convicted Walker of first-degree robbery in Queens County Supreme

Court in June 1992, and the state Appellate Division affirmed the conviction in
June 1995. The New York Court of Appeals denied Walker leave to appeal his
conviction on January 15, 1996. Walker's conviction therefore became final on
April 14, 1996, when his time expired to seek direct review by writ of certiorari
to the United States Supreme Court. Walker pursued a state collateral attack on
his conviction and petitioned for a writ of error coram nobis, which the
Appellate Division denied on March 18, 1996. According to appellant, he also
filed a separate motion in February 1996 to vacate his conviction in state court,
which denied the motion in April 1996.

In a single document dated April 10, 1996, Walker filed in federal court a
complaint pursuant to 42 U.S.C. 1983 and a habeas corpus petition pursuant to
28 U.S.C. 2254. The district court for the Eastern District of New York
dismissed the complaint and petition without prejudice on July 9, 1996,
because (1) Walker failed to state a Section 1983 claim against his courtappointed lawyers, who were not state actors; and (2) it was not apparent from
the petition what issues Walker had raised in his direct criminal appeals and
whether Walker had exhausted his state-court remedies. See Walker v. Legal
Aid Soc'y, No. 96 CV 2946, 1996 WL 391585, at *1-2 (E.D.N.Y. July 9,
1996). About 11 months later, Walker filed in federal court a second habeas
corpus petition dated May 20, 1997. In a memorandum and order dated May 6,
1998, Judge Johnson dismissed the second petition as untimely pursuant to the
Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") because
Walker filed it more than one year after the effective date of the AEDPA, or
April 24, 1996. Judge Johnson also noted that Walker filed his second habeas
petition more than one year after completing his direct criminal appeal and
nearly one year after the court dismissed his first habeas petition. On December
18, 1998, we granted Walker a certificate of appealability regarding these two
issues: first, whether Walker's first habeas petition tolled the one-year statute of
limitations, and second, whether equitable tolling applied to make Walker's
second habeas petition timely. Because we answer the first question in the
affirmative, we need not reach the issue of equitable tolling. Walker's appeal
presents questions of law that we review de novo.

DISCUSSION
4

Walker's appeal presents a narrow question regarding proper interpretation of

Section 2244's statute of limitations and tolling provisions. At issue is whether

the AEDPA's mandate to toll its one-year limitations period during the
pendency of "other collateral review" applies to properly filed federal habeas
petitions or only to applications for state review. See 28 U.S.C. 2244(d)(2).
5

In general, the AEDPA restricts the ability of prisoners to seek federal review
of their state criminal convictions. Section 2244(d) created a new one-year
statute of limitations in which state prisoners could file applications for a writ
of habeas corpus. See 28 U.S.C. 2244(d)(1). The one-year period generally
runs from the date on which the state criminal judgment became final. See id.
Prisoners like Walker, whose convictions became final prior to the AEDPA's
effective date of April 24, 1996, have a one-year grace period in which to file
their habeas corpus petitions, or until April 24, 1997. See Ross v. Artuz, 150
F.3d 97, 102-03 (2d Cir. 1998). Section 2244 also has a tolling provision that
applies to both the statute of limitations and the one-year grace period. See
Bennett v. Artuz, 199 F.3d 116, 119 (2d Cir. 1999) (holding that the "AEDPA's
pending-state-petition tolling provision does apply to a petition challenging a
pre-AEDPA conviction"), petition for cert. filed, ___ U.S.L.W. ___ (U.S. Jan.
24, 2000) (No. 99-1238). The tolling provision at Section 2244(d)(2) states:

The time during which a properly filed application for State post-conviction or
other collateral review with respect to the pertinent judgment or claim is
pending shall not be counted toward any period of limitation under this
subsection.

28 U.S.C. 2244(d)(2).

Walker interprets Section 2244(d)(2), specifically the phrase "other collateral

review," to mean that we should exclude from the one-year grace period the
time during which his first, timely habeas corpus petition was pending in
federal court. That exclusion of approximately 80 days would render his second
habeas petition timely. Respondent interprets the phrase "other collateral
review" to mean only state procedures or remedies. Under this view, no tolling
takes place and Walker's second habeas petition is untimely because he filed it
after the one-year grace period ended on April 24, 1997. Both Walker and
respondent claim that their interpretations rely on the plain language of Section
2244(d)(2) and are consistent with the legislative goals of the AEDPA.

Although a number of federal district courts have addressed this question, only
one other circuit court of appeals has decided the issue. In Jones v. Morton, the
Third Circuit held that Congress "intended that the word 'State' would be read

to modify both 'post-conviction' and 'other collateral,' so that tolling would be

afforded under 2244(d)(2) for various forms of state review only." Jones v.
Morton, 195 F.3d 153, 159 (3d Cir. 1999). The Third Circuit relied upon a
California federal district court case, Sperling v. White, 30 F. Supp.2d 1246,
1250 (C.D. Cal. 1998), as well as other district court cases adopting Sperling's
interpretation. See Jones, 195 F.3d at 158-59. In Sperling, the district court
adopted the report and recommendation of a magistrate judge holding that
Section 2244(d)(2) "does not contemplate tolling limitations during the time a
habeas petition is pending in federal court." Sperling, 30 F. Supp. 2d at 1250.
But see Barrett v. Yearwood, 63 F. Supp.2d 1245, 1249-50 (E.D. Cal. 1999)
(reaching opposite result). We respectfully disagree with the Jones approach.
10

It is possible to interpret the word "State" in Section 2244(d)(2) to modify both

"post-conviction" and "other collateral." Close analysis of the statute language,
however, shows that "State" modifies only the word "post-conviction," and the
phrase "other collateral" is to be given its naturally broader meaning. The
disjunctive "or" in the statute creates a distinct break between the two kinds of
review Jones and Sperling would tie together. In contrast, applying "State" to
both of the disjunctive phrases would create a linguistic oddity because the
statute would refer to "a properly filed application" for "State post-conviction . .
. review" or "State . . . other review." "State other collateral review" is an
ungainly construction that we do not believe Congress intended. If Congress
had intended the meaning that the Sperling court imputed, it might more
naturally have written "a properly filed application for State post-conviction or
collateral review." We choose to adopt an interpretation that gives full meaning
to the phrase "State post-conviction review," which includes all state remedies,
and the phrase "other collateral review," which means federal habeas petitions.
As the district court held in Barrett, "'State post-conviction review' means all
collateral review of a conviction provided by a state," and the phrase "other
collateral review" would be meaningless if it did not refer to federal habeas
petitions. Barrett, 63 F. Supp.2d at 1250.

11

In addition, the district court's interpretation in Sperling strains to hold that

"State post-conviction review" means state judicial remedies and "other
collateral review" means non-judicial state remedies such as petitions for
clemency filed with the governor. See Sperling, 30 F. Supp. 2d at 1251. This
reading would require us to interpret at least one of these terms differently from
its normal usage, because both "collateral review" and "post-conviction review"
conventionally refer to habeas corpus, coram nobis and similar writs or judicial
orders that courts issue after a conviction is final, overturning the conviction by
reason of some error of law. Sperling read "collateral" to apply to clemency and
pardon applications in order to avoid having it refer to the same scope of

proceedings as "post-conviction review" describes, but we can see no logical

reason why Congress would have thought those applications to be included in
the term "collateral" but not "post-conviction." The only legislative history
upon which the Sperling decision relies for its equation of "other collateral
review" with petitions for clemency is a statement of Senator Orrin Hatch
concerning a totally different proposed amendment to the legislation and
discussed in the context of capital cases. See id. at 1251 (citing 141 Cong. Rec.
S7803-01, S7825-26 (June 7, 1995) as "appearing to describe a state petition for
clemency as a form of collateral review, but distinct from judicial postconviction review"). The Sperling court's own characterization of the
legislative history provides only a slender reed upon which to rest its holding.
Because "post-conviction review" is a broad term that seems to encompass all
review a prisoner seeks after conviction, we can see no reason why Congress
should have believed that there were "other" forms of "collateral review" that
did not come within the scope of "post-conviction review."
12

The Sperling court also held that its interpretation was consistent with the
overall objective of the AEDPA "to place finite restrictions upon the time
within which a petitioner may file a petition in federal court." Id. at 1251.
However, allowing Walker to exclude the time during which his first federal
habeas petition was pending does not create a loophole in the law. The tolling
provision by its terms already pertains only to "properly filed application[s]."
28 U.S.C. 2244(d)(2). Thus, for example, successive petitions arguably would
not toll the one-year period. Even if they did, the act's restrictions on successive
petitions, see 28 U.S.C. 2244(b), would not allow a petitioner to file another
petition if the district court dismissed a first petition on its merits or with
prejudice. We therefore disagree with respondent that our reading would
frustrate the AEDPA's purpose by allowing petitioners to indefinitely toll the
statute of limitations by filing a series of unexhausted petitions.

13

Moreover, including federal petitions within the meaning of Section 2244(d)(2)

will reward petitioners for filing their federal petitions as soon as possible, thus
promoting the statutory objective of efficiency in the review of state criminal
judgments. Congress enacted the limitations period to spur defendants to file
their federal habeas petitions more quickly, and reading the tolling provision to
encompass federal court consideration of the petitions furthers this goal. Under
our reading of the statute, defendants will have an incentive to file their federal
petitions right away because this filing will toll the one-year statute of
limitations. This tolling is particularly useful for a petitioner if, upon review,
the federal court determines that he must return to state court to exhaust his
claims. Meanwhile, if the claims are properly before the federal court, this
incentive leads to speedier completion of collateral review.

14

We must examine the issue before us in the historical context of the AEDPA.
This statute created a one-year statute of limitations where none previously
existed. See Ross, 150 F.3d at 98. This in itself was a dramatic change in the
law and was Congress' primary vehicle for streamlining the habeas review
process and lending finality to state convictions. By reading the tolling
provision of Section 2244 to include pending federal habeas petitions, we do
not detract from the overall purpose of the AEDPA because the statute of
limitations remains enforceable and intact. Our interpretation merely avoids
penalizing state prisoners who properly have filed federal habeas petitions and
are awaiting a response from the court.

15

In adopting the contrary position, the Third Circuit did not "dwell" on the issue
before it because it believed the majority of courts considering the issue
adopted the Sperling v. White approach. See Jones, 195 F.3d at 158-59. We do
not see a consensus emerging. It is true that three other California district court
cases are consistent with the Sperling decision issued in the Central District of
California. See Harrison v. Galaza, No. C 98-3371 TEH (PR), 1999 WL 58594,
at *2 (N.D. Cal. Feb. 4, 1999); Vincze v. Hickman, No. CIV S-98-044
WSBGGHP, 1999 WL 68330, at *1 (E.D. Cal. Jan. 13, 1999); Babcock v.
Duncan, No. C 97-2740 VRW (PR), 1997 WL 724450, at *2 (N.D. Cal. Nov.
12, 1997). As noted above, however, we find the analysis of the California
minority position in Barrett to be more persuasive. See Barrett, 63 F. Supp.2d at
1249-50. In addition, one of the district court cases upon which both Jones and
Sperling rely does not clearly support their position. In the Wisconsin case of
Kethley v. Berge, the district court indeed held that "time is not tolled while an
improperly filed federal habeas petition is gathering dust on district court
shelves" pursuant to Section 2244(d)(2). See Kethley v. Berge, 14 F. Supp.2d
1077, 1079 (E.D.Wis. 1998). However, the Wisconsin court also recognized
the inequity resulting from its interpretation, stating that "the procedural
dismissal of petitioner's action in the present case should not later be construed
to produce the unintended effect of barring federal habeas review under the
AEDPA statute of limitations provision." Id. The Kethley court remedied this
problem by permitting the petitioner to reopen his petition after exhausting state
remedies and preserve his original case number and filing date as "a form of
equitable tolling of the AEDPA's limitations period." Id. at 1079. Cases
purporting to follow Kethley's interpretation of Section 2244(d)(2) have not
adopted this second part of the solution. Although we agree with the Wisconsin
court's assessment of the inequity its interpretation of Section 2244(d)(2)
creates, we find its solution to the problem - preserving the original petition's
case number and filing date - to be artificial and cumbersome. A much simpler
approach is to interpret the words of Section 2244(d)(2) to allow tolling
outright in cases such as Walker's.

16

Because we decide that Section 2244(d)(2) by its terms tolled the one-year
period of limitations while Walker's first federal habeas petition was pending,
we need not reach his alternative argument that the court should exercise its
equitable powers to exclude the approximately 80 days during which the first
petition was pending.

CONCLUSION
17

For the foregoing reasons, we reverse the district court's dismissal, reinstate
Walker's petition for habeas corpus relief, and remand the matter to the district
court for further proceedings.